I read this the other day and my reaction was "So?" That is what happens to you when you for years tried to get someone to help you, you lose empathy and shut down. The last sentence in this article says it all.
This is King County the largest county in Washington State and home to Seattle, the city with the bluest skies you ever have seen that shed more tears of gray that I have ever counted past 50. (You may or may not get either references, people in Seattle hate cryptic messages, they are sort of kind of liberal in that passive aggressive way)
I have nothing to add to these stories, these stories are mine. The woman who Prosecuted me in Seattle, Jen Miller, was a former Sexual Assault prosecutor, she has now left the City of Seattle and is in private practice helping women. Irony. (And if you need to know what I was prosecuted for that is another story at another time but yes read the article you function on drugs just you have no recall)
My Attorney, Kevin Trombold, got my case reassigned to her with the hopes she would help resolve my case vs prosecuting me. Wrong, wrong and wrong. She had no interest in as such and for the record he did not believe me either, to the tune of about 25K I think in legal fees and still he wanted me to take a lie detector. If it was not for Ted Vosk the Attorney who joined and eventually defended me in court, and friend of Trombold, I would have had to pay for and have this absurdly since utterly discounted test just to make Trombold feel better about himself. It certainly would have done nothing for me.
As I said, this blog is transitioning as I transition into wanting a writing career. So here is where I begin the basis of the books, essays and stories I wish to tell. I will no longer hide names and especially those of a public record, other than my own (which is as well and I was nearly denied housing because of this). My pseudonym, Green Goddess, has been mine long before this story began and will remain as such long after.
The reality is we live in a country of rage and anger. White men particularly are angry and then when anyone of color or gender get into positions of power they do not lift up or rise up to help those like them they turn on them in a hot minute, convinced that they got there so can you and you are lazy/stupid/stoned/slut/pick a name that somehow in turn blames you for your failure to do whatever they did to get them there. And the irony that Governmental laws and programs that enabled them to climb that ladder are utterly disregarded as they are sure it was them and and them alone that managed to somehow overcome years of suppression and oppression. What.ever.
I have zero respect for the system of Justice as it is so called named. We now have a potential Attorney General who is a well documented racist and of course caller of names when it comes to people who use drugs, I assume he will include alcohol in that domain. If you think it was bad, wait it could get worse.
I have said it before and I will say it again - be afraid be very afraid.
The Double Bind
Allegations of rape will get you an audience with the King County Prosecutor’s office. But justice is more elusive.
The Seattle Weekly
Wed Dec 7th, 2016
Editor’s note: The following story contains detailed descriptions of sexual assault, and may be triggering to survivors.
It was the day the Seahawks won the Super Bowl, and Monique was hanging out at a house party with friends, drinking hard cider and eating chicken wings. She didn’t have work the next day, so when she left the party, she didn’t go home; the city was still out celebrating, so she went out to a bar, alone. It’s a decision that, she says, “I will always second-guess for the rest of my life.”
She remembers ordering a champagne cocktail. She remembers someone offering her their extra shot of tequila. After that, things get very muddy. “I think I maybe ordered another drink? My bar tab seems to indicate that I ordered more than one, but I don’t remember that.” Maybe there was some dancing; she thinks she was trying to send a text message to a friend before her phone died. Then she was in the bathroom, throwing up; then she was throwing up in the bar’s entryway—she vaguely remembers the bartender escorting her out—then she was throwing up in the parking lot. It’s all disjointed scenes, she says, like a muted, slow-motion dream sequence. “There’ll be pockets of memories, but not one cohesive narrative of what happened.” The last thing she remembers “was seeing a pair of men’s shoes. Like, I could see my own, and then there was another person.”
She woke up in the dark with a pounding headache. She was naked except for her socks. There was vomit in her hair, under her fingernails. A strange man was spooning her, his finger in her vagina. “Do you like that?” she remembers him asking.
“No. No. Stop.”
“Part of me just felt frozen,” she says now. “I still felt very out of it. Like, very cloudy … it felt like I was sinking into the bed, it was like quicksand, and I just weighed a thousand pounds.”
He tried to pry her legs open. “No, no.” As her head raced and pounded, her limbs like lead, she heard a snap, snap, the sound of a camera shutter—he was taking pictures.
She managed to get up, and there were her clothes, bunched up on the floor. She asked for the bathroom and, on the way, noticed a dozen loose bullets strewn on top of the dresser. Her heart was pounding. She had no idea what had happened while she was passed out, no idea if there was a gun nearby, no idea how she could escape, save running outside naked in 30-degree weather.
Monique went to the police almost immediately.
She told them she had “played dumb” and convinced the man who must have taken her home from the bar to drive her back to her neighborhood, as she somehow had no purse with her, no wallet, no keys. She had searched for clues next to the bullets on the dresser and found a hospital bracelet with a name on it; she also tried to memorize his street address and his car’s license plate as they pulled away, as well as the time of day: approximately 5 a.m.
An ambulance arrived at the police station to bring her to the hospital, where sexual-assault nurse examiners documented a scratch on her back and a bruise on her shin, took swabs from her vagina and anus and boots, and took samples of her blood and urine. Monique—who like all the alleged victims in this story is not being identified by her real name—has worked as a prosecutor, and so was thinking, in those first hours, about evidence collection; she asked for a pen and paper as soon as she arrived at the police station and sent a very detailed statement within a day to investigators.
“I want to cooperate with authorities,” she wrote in the statement. “I don’t want this assault to define me, and I definitely don’t want this man to get away with thinking that what he did was okay… . I was clearly in no condition to consent [to sexual contact] at any point from when I left [the bar] up until when I reported to police. And this man should have known that.”
What Monique didn’t know at the time was that her case was unlikely to go anywhere. In more than 50 percent of all sex-crime cases that come into the Special Assault Unit of the King County Prosecuting Attorney’s Office, charges are never filed. And of the cases that are filed and pursued, few represent what Monique says she experienced, one of the most prevalent forms of sexual assault, particularly against young women: alcohol-facilitated rape. It’s a crime that takes place while someone is extremely intoxicated, often in a private space, without weapons, without witnesses, and with an account of the rape that is impacted by significant lapses in memory. Washington, like most states, classifies this as rape in the second degree. Unlike in first-degree rape, there is no deadly weapon, breaking and entering, or serious physical injury involved; rather, the question is whether or not the victim was physically or mentally capable of consenting to sex. Because the evidence can be so limited, and because juries have long been reluctant to convict when a rape victim had been drinking, prosecuting this form of assault is especially, and in some cases, prohibitively, difficult.
Still, Monique’s professional experience led her to believe she was doing everything right—things that most victims of assault might not think to do. She memorized numbers and addresses, took note of seemingly minute details, went immediately to police and to the hospital. She gave investigators the names and contact information of friends who had been with her that day; she followed up the next day with the bartender to make sure she had his name and information, too. But after nine months and what Monique believes was a minimal investigation, prosecutors ultimately declined to file any criminal charges.
She was told, among other things, that because she had such a limited memory of events, because she was passed out for much of the night, “I couldn’t prove I hadn’t consented” to sexual contact. “I didn’t know what else to say, other than, like, ‘I was way too drunk, I was passed out, so I don’t know how you can say that I consented when I was passed out?’ ”
It was a warm summer night, and Laura had gone out with a girlfriend. She had four or five drinks over the course of many hours; her friend left, and she stuck around at a dive bar where she was a regular, playing ping-pong, chatting, meeting people. She remembers having a brief, friendly conversation with one man; they planned to sing a karaoke song together. She remembers going to the bathroom and asking him to watch her drink. She came back and they sang the song. “I remember nothing at the bar after that. Nothing whatsoever.”
The rest of the night sinks into a thick, black fog. She remembers “walking down the street, and he was walking with me, and I remember telling him, ‘I don’t want to have sex with you.’ ”
Then: “I’m laying in his bed with my tights and underwear pulled around my ankles with my shoes still on, and he’s performing oral sex on me.”
And then: “An image of him standing next to the bed, naked. Buck naked. With a condom on.”
And then: “Sharp, stabbing pains … and him saying, ‘Hold on, I’m gonna get a towel.’ And I look down, and there’s just blood everywhere.” She remembers panicking, saying, “No,” and, somehow, leaping up and running out onto the street, where her mind was still so warped that “I couldn’t physically figure out how to see a street sign.” She thinks she called a friend. Suddenly she was in her apartment, “crying and screaming, blood still all over the place”; she went to the bathroom and “a fist-sized blood clot came out.”
That’s when she went to the hospital.
During the rape exam, nurses found a three-centimeter laceration in Laura’s vagina that required stitches, as well as other bruising and abrasions. When they tested her urine, they also found alpha-hydroxyalprazolam (aka Xanax)—a prescription drug that when mixed with alcohol can cause extreme fatigue, memory loss, and loss of consciousness—which she claims she has never voluntarily taken. Part of her cervix, according to the preliminary report, had “mild mottling consistent with trauma.”
She says her friend called the bartender the day after the incident to ask him what he remembered, and he’d responded, immediately, with “Is she OK?” because of what he’d perceived to be very intoxicated behavior, and because he suspected the man she was with was “not a good person.” Laura was determined to report the crime, and spoke with police within two days. She was able, eventually, to pick the man out of a police lineup.
The process took nearly a year, but, Laura says, “I kept thinking there was gonna be a trial. So I kept going over in my head: ‘What am I gonna say? What am I gonna do?’ ” And then, when it became clearer and clearer that there wouldn’t be any trial—or any criminal charges filed—“I would be thinking, ‘What do I say at the next meeting [with prosecutors]? ‘How can I convince them to prosecute this?’ … I kept thinking there was something I could do. I kept thinking I could change this.”
But prosecutors decided that this case, too, would not result in any charges. The public document describing the crime and detailing prosecutors’ reasoning for not pursuing the case, referred to as a “decline memo,” states that the bartender and others the police interviewed said Laura was “conversational and coherent” before she left the bar with the man, although she has no memory of it. It goes on to point out that Xanax can stay in the system for up to six weeks; there was no way to prove the suspect had put anything in her drink; the laceration in her vagina was not, definitively, the result of a sexual assault; and “although she is unable to recall much of what happened after she left the bar with the Suspect, she does have some fleeting memories of what occurred.” The presence of some memories, it turns out, can be among the counts against filing charges for second-degree rape.
Monique says she was essentially told she’d been too intoxicated to prove she didn’t consent; Laura may not have been intoxicated enough to prove she couldn’t.
Like Monique, Laura believed and “had read that the thing that matters most in these cases … is the willingness for the victim to cooperate … Yeah, it seemed like a hard case, and we knew there was a possibility he would get off,” but “I wanted to do it. I was still willing to go through with the process.” That is mostly because she thinks the suspect deliberately drugged her, and that this was not a one-time deal. “There’s no way that I could possibly be the first person” he’d raped, she says. “And there’s no way I’m gonna be the last.”
One in five American women has been raped in her lifetime, according to the Centers for Disease Control and Prevention. Other studies put that number at one in four, or even, in the case of campus rape, one in three. But very few perpetrators will ever spend a day in jail for the crime.
The fact that charges are never filed for more than half of all cases referred to the King County SAU, then, is not uncommon—and, since the SAU also prosecutes crimes against children, and police are legally required to forward any child-abuse allegations to prosecutors in Washington state, even without a shred of evidence, it could also be somewhat misleading.
King County is certainly not a worst-case scenario. Consider, for instance, Denver’s alleged decline rate for felony sexual assaults a few years ago (71 percent, according to one investigation); or Salt Lake County, Utah, where one study found that, over a span of eight years, 75 percent of rape reports with DNA samples were never charged; or Missoula, Montana, which was under federal investigation between 2012 and 2014 for its alleged failure to effectively prosecute sexual assaults against adult women. Between 2008 and 2012, the Missoula County Attorney’s Office failed to file charges on approximately 83 percent of all such cases referred to it by police.
All of this is in part because prosecuting any kind of sexual assault is notoriously challenging. Due to the nature of trauma, the effect of trauma on memory, and the social implications—especially because, studies show, most perpetrators are known to the victim—there are often major delays in reporting, resulting in a lack of physical evidence. A huge number of rapes occur when the victim is intoxicated, though the extent to which she was intoxicated can be difficult to prove, and most rapes have no direct witnesses.
Yet some victims and victim advocates contend—and some former prosecutors and others close to the office confirm—that even given their inherent difficulties, there has long been an unacceptable reluctance to pursue alcohol-facilitated sexual assault in King County. And in the process of declining, victims say and public documents suggest, the justifications prosecutors have used often place the burden on the victim’s negligence, rather than the alleged perpetrator’s actions.
“We have been hearing prosecutors who are in positions of power say things that are extremely concerning to us,” says Emily Cordo, former legal director with the YWCA program Sexual Violence Legal Services, who, as well as her colleague, Riddhi Mukhopadhyay, sat in on many decline meetings with victims in the King County prosecutor’s office over a number of years. “Both in terms of how those statements are affecting the victims that are having to listen to them,” she says, “but also the concern that their decision-making is being guided by beliefs that don’t, in my opinion, conform with either the reality of what rape looks like, or, in some ways, what the law says.”
Washington state law classifies a major tenet of rape in the second degree as when “the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.” In practice, that means if a victim has a mental disability, or is under the influence of a significant amount of drugs or alcohol—as Monique and Laura say they were—she or he arguably could not have consented to sex. According to King County’s filing standards, Rape 2 cases “shall generally be filed when the extent of intoxication is extreme (unconscious or nearly so) and that condition would be readily apparent to a reasonable person.” Physical helplessness and incapacitation is linked in King County, then, to near-unconsciousness—a full-on, fast-asleep state. This is a higher bar than what is required to file Rape 2 charges elsewhere in Washington. Such a distinction isn’t made in neighboring Snohomish County, for instance, and several recent Rape 2 cases filed in Pierce County also make no mention of unconsciousness. King County Senior Deputy Prosecuting Attorney Lisa Johnson, who heads the SAU, says that unconsciousness is not a requirement for these cases, per se; rather, it’s an example of the level of incapacity required. “You can’t just be compromised,” she says. “That’s not enough for the law. You have to be incapable of consent.”
Still, defining “unconscious or nearly so” is where many King County cases seem to get stuck.
A victim’s level of intoxication can be one way for prosecutors to get beyond a conflicting “he said, she said” version of events. But according to approximately two dozen conversations with victims and advocates and former prosecutors, as well as a review of hundreds of decline memos filed over the last two years, Seattle Weekly has found that alcohol-facilitated sexual assault often presents what Cordo calls “an impossible double bind”: Under King County’s criteria, when a victim is so blacked out she can’t remember much, that can doom the case, because there’s not enough information about the assault to go on, and a muddled account of the rape compromises her credibility. But when she has a clear memory of the assault, or even mere “flashes” of memory, she often isn’t unconscious enough for the assault to qualify as Rape 2.
“It’s a lose/lose situation,” one alleged rape victim told Seattle Weekly. “When I went to the prosecutor … I remembered too clearly for alcohol to be involved. I knew too much of what happened. Which is funny, because if I had said nothing, if I had said I didn’t know what happened, they’d be like, ‘We don’t know what happened so we can’t prosecute it.’ What should I do?” she implores. “What do you want me to say?”
In 2016, recent data shows, rape reports are up in Seattle. As sexual-assault experts will confirm, this is unlikely to mean more rapes are happening, but rather that more people are reporting rape. In a world where two out of three victims of sexual violence never report the assault at all, this suggests that, to some victims and their communities, rape is more and more often being seen as a prosecutable crime.
Which is, King County prosecutors say, a very good thing. “We’re seeing more cases come into us for review, which is great,” says Johnson. “We’re trying to keep our head above water.”
Johnson says her office is aware of the concern that it too often dismisses alcohol-facilitated rape cases. She says she and colleagues across King County and the state have made significant changes in the past year to address it, including a renewed emphasis on the strength of police investigations, updates to the county’s sexual-assault exam protocol, efforts to address the state’s rape-kit backlog, and extra trainings, task forces, and internal conversations.
Yet questions remain as to where these new rape reports will end up, if—as some victims and advocates allege—society’s longstanding beliefs about alcohol and rape exist inside the very prosecutorial unit designed to combat them.
For Laura, it’s unclear where exactly things fell apart in her case. She didn’t feel she was treated well at the hospital (the first place she went didn’t do rape exams) or at the police department (she waited alone for hours, then was interviewed by someone with little experience in rape cases).
But when, four months later, she was finally brought in for a face-to-face meeting with a King County prosecutor, she felt completely alone. Believing, at first, that “I was going there to help the case,” she was swiftly told that there was no way they were going to prosecute. The reasons they gave were similar to those detailed in the decline memo: The injuries she’d sustained could be explained away because “he would just say I wanted rough sex,” and when she asked if they could perhaps use scientific research to demonstrate that nonconsensual sex is more likely to result in multiple injuries such as hers, she was told, “We don’t use expert testimony.” Ultimately, Laura says, she was told her case was a “ ‘he said, she said,’ and they wouldn’t be able to prosecute unless they had video evidence.”
It was as astonishing as it was painful. “Essentially every argument I made, [the prosecutor] made the argument of the accused, that the defense would make, and then discounted it, as if because the defense would argue against it, it’s not a valid argument, or not something we can do,” Laura says. She believes that detectives “did the bare minimum, and then threw it to the prosecutors, and then the prosecutors argued it all away.”
Laura kept fighting, however, with the help of victim advocates. In a subsequent meeting with a second prosecutor, she says she was told: “Well, you did drink excessively.” And then: “While it may be morally reprehensible to have sex with a drunk woman, it’s not a crime.”
Likewise, Monique says a prosecutor asked about the amount of alcohol she’d consumed on the night of her alleged rape, and her seemingly calm behavior while at the man’s apartment; she says she was asked “why I hadn’t put up more of a fight.” And when she repeatedly insisted, “I’m sitting here telling you I didn’t consent,” she says a prosecutor suggested that this man “probably … saw this drunk girl and thought that, you know, he could take advantage of her.”
Another victim says that she was told similar things: that her case rested on her testimony alone, and the perpetrator was going to say it was consensual, although she claims there were many witnesses who had been with her before the assault, knew how drunk she had been, and saw her sobbing and bloody afterwards. “They said … I wasn’t fighting hard enough. I should have broken his finger, or something. I didn’t say ‘No’ enough times.” And then, when she was telling them about her level of intoxication, and she herself suggested “he was taking advantage of me because I couldn’t fight that hard … they said: ‘Taking advantage of someone isn’t rape.’ ”
Another victim told Seattle Weekly that while, initially, charges were filed on her case—which she was repeatedly told was “very, very strong” because of the abundance of witnesses before and after the assault—they were subsequently dropped, in part because it seemed plausible that the fact that her friends “were aware of rape culture” meant that they “could have planted this idea in my head.”
Cordo says such language isn’t uncommon.“Many of those things are things we hear repeatedly in numerous cases,” she says. “It’s the thing that they say; it’s not just a one-off, slip of the tongue. It’s their point of view.”
At least six victims who spoke with Seattle Weekly for this story confirmed that at least five different prosecutors of the 16 who work in the SAU had said similar things, or made them feel culpable for the assault. Decline memos from the past two years contain similar assertions. Cases are sometimes declined in part because the victim “was observed to be very flirtatious” prior to the assault, for example, or because she “did not continue to express that lack of consent,” which “could have been construed … as changing her mind and now consenting.”
Presented with these claims, Senior Deputy Prosecuting Attorney Lisa Johnson says that this is not at all what prosecutors mean to say, nor what they believe. “Yes, that is part of the dialogue: If [a victim] had a lot to drink, and they had no memory, therein lies our problem of how we need to build that case otherwise,” she explains. “I can see [victims] hearing only: ‘It’s because of what I did.’ Which is not at all what we want them to hear—or [what we] think.” She says she is dedicated to improving the way that SAU prosecutors deliver bad news. “That’s another conversation: how to deliver that kind of message without making somebody feel that they were responsible for their own victimization?”
Regardless of intent, victims and advocates say and decline memos suggest, King County prosecutors’ comments are typically couched in the context of convincing a jury: These are things a jury would believe, that a defense lawyer would argue, and, if a case makes it to trial, what prosecutors would be required to guard against. In a sexual-assault case, which relies heavily on the victim’s testimony, a key defense strategy is to attack the victim’s credibility. Those “blame and believability factors” can be pivotal in whether or not a prosecutor chooses to press charges in the first place, according to multiple research studies on prosecutors’ charging decisions in sexual assault cases across the country. As a result, this language may not be exclusive to King County. “I could not believe the things that prosecutors would say to victims,” says Joanne Archambault, executive director of End Violence Against Women International (EVAWI) and a former sex-crime detective in San Diego, Calif. “The stuff that you hear prosecutors say is amazing. It doesn’t surprise me. It’s just very sad.”
According to some critics, while language like this affects victims, it could have an unintended effect on detectives, too, who also see these decline memos and thus note the approach the prosecutor’s office often takes on alcohol-facilitated cases. “What are you teaching law enforcement?” wonders Cheryl Snow, a former King County prosecutor, now a private attorney. She adds that a practice of “cross-examining or going after the victims” rather than putting the focus on “offender behavior” is concerning.
A number of victims and advocates told Seattle Weekly that police investigations indeed seemed lackluster. In one case, a college freshman says she was assaulted—twice—by another student. King County prosecutors declined to file charges, the young woman was told at the time, because “these ‘he said, she said’ cases … it’s not a popular case to take forward … you were drinking.” To the victim, “it was like they didn’t really care.”
But because her father was irate about the lack of criminal prosecution—“the best [a university] can do is expel somebody,” he argues; “it doesn’t deter them from doing it to somebody else, somewhere else”—he hired a private investigator to look into the alleged attacker’s past behavior. The investigator was able to obtain seven signed affidavits from seven different women—three who claimed they’d been sexually assaulted by the alleged assailant, and four who’d witnessed various forms of sexual assault he’d committed. When this information was subsequently submitted to the prosecutor’s office, prosecutors still declined to file.
Prosecutors, in Washington state and across the country, have both a legal and ethical obligation to charge cases they believe they can win at a jury trial. According to Washington state statute, they are to file charges for “crimes against persons” only if they believe “sufficient admissible evidence exists … to justify conviction.” And, according to national criminal-justice standards for prosecutors published by the American Bar Association, “A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes … that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.”
Of course, there’s tremendous discretion in a decision like that, says Johnson. King County filing standards on Rape 2 require the prosecution to demonstrate not only that a victim was incapable of consent, but that the perpetrator knew or should have known that she was incapable—something that Johnson cannot take lightly. “It’s a high burden,” she says. “We have to take our responsibility seriously. It’s not a situation … where you just say, ‘Somebody made a complaint, therefore they get their day in court.’ We’re not permitted to do that.”
King County prosecutors also confirm that their decision-making regarding alcohol-facilitated assault is heavily influenced by past experience with juries, who are reluctant to convict unless (and even when) a victim was nearly unconscious from drinking. “We have the benefit of the collected wisdom of many jurors that have heard these cases,” wrote Mark Larson, chief deputy of the criminal division, in an e-mail to Emily Cordo in 2015. “The history is pretty clear that jurors perceive the bar to be a high one.” Johnson emphasizes this, too: It is not enough to say that an alleged victim was impaired; she must have been truly incapable of consenting. One of the most surefire ways to prove this in court, short of video evidence, is witness testimony. In Monique and Laura’s cases, although they lost significant amounts of memory, and Monique repeatedly vomited, witnesses at the bar described them as coherent.
One former King County prosecutor says that “the first thing I was told [after getting hired to the King County SAU] is you cannot prove these cases.” A case in which a victim had a startlingly high blood-alcohol content and a jury still acquitted was offered as proof.
Naturally, victim advocates “don’t want prosecutors filing charges willy-nilly against people without any evidence to support it,” Cordo says. “I get that. But there is a big spectrum between that and saying, ‘We have to feel like it’s a slam-dunk before we’re going to do anything.’ There’s a lot of gray area there.” She notes that a very small number of sex-crime cases, in King County and elsewhere, result in a trial—and the King County SAU has a fairly impressive win rate for its cases that do. According to data compiled by the King County Sexual Assault Resource Center’s CourtWatch program, between 2011 and 2015, no more than 8 percent of sex-crime cases have ever gone to trial at all, and no more than 2 percent of defendants have been acquitted through a trial. Cordo believes that part of the reason for this low number is that they are not charging difficult cases; they prefer, as Monique puts it, “cases that are just tied up with a little bow.”
In Joanne Archambault’s opinion, prosecutors everywhere “are scared to death of these cases” in part because of the slim chance of success. “They don’t like that juries do blame victims—that attitude that if you’re drunk and you’re that stupid, you basically deserve what you get.” Yet she believes a jury-blaming excuse is a “cop-out. My argument to prosecutors is: If you continue to say we can’t take these cases, we can’t educate the community, or these juries—we might as well pack up and go home.”
That there is often alcohol present and there are rarely direct witnesses “is the reality of rape,” says Patti Powers, a former prosecuting attorney in Yakima County and now an attorney advisor for AEquitas, a nonprofit resource for prosecutors addressing violence against women. Prosecutors of these crimes “have to look at the totality of circumstances. You look to secondary witnesses and corroboration. You need … to be able to represent a picture … of what level of intoxication, what level of impairment there might be.” While juries are reluctant to convict, prosecutors can (and should) “educate a jury on the reality of these crimes,” through, for example, expert testimony regarding alcohol, trauma, and memory. Ultimately, “there certainly is a potential of success” in cases like these, she says.
Lisa Johnson knows all this very well, and repeatedly points to the King County SAU’s renewed efforts to be “more creative” and “think more broadly” with its approach to these cases. Still, she says, while “experts can be useful,” because there is nothing definitive about blood-alcohol numbers, and “there’s always an expert on the other side,” it’s not a first-resort trial practice for SAU prosecutors. “Really, we don’t want it to be a battle of experts. Rather, how can we try to recreate what the situation was?”
One way to do that, of course, is through concrete evidence. While it is the prosecutor’s ultimate responsibility, according to the American Bar Association, to ask police departments for more information if there’s a clear need, some prosecutors say they aren’t sure asking detectives to do more work is necessarily effective. Often, by the time a case gets to the prosecutor’s office, if the evidence they’d need isn’t already there—a bartender’s clear recollection of a certain night, say—it won’t ever be. That’s why the King County SAU has put effort over the past year into collaboration with sex-crime detectives, including creating a new checklist that details the evidence that police should look for immediately and obtain, if possible, for drug- and alcohol-facilitated assaults. Among the changes are new suspect-interview techniques; in the past, Johnson says, interviews with suspects would often rest on “It was consensual.” Now, police will be tasked with finding out why, exactly, a suspect believes that.
Regardless, there’s no doubt that these are hard cases to win in court. “People are certainly very cautious when they label someone as a sex offender,” Johnson says. “They have a preconceived idea about what rape is, and it sometimes doesn’t include these kinds of cases. They’re wrong … but we need to prove [it] to them.”
One victim’s father concedes that he understands, to some extent, what prosecutors are up against. Yes, juries struggle to convict when there’s any question of intoxication. How do we know how they behaved when they were intoxicated? How do we know what really happened? Don’t women who get drunk take that risk, basically? But as a society, “We’ve got to figure out how to change the attitudes,” he says. “Somebody’s got to do it. And what’s happening is victims are starting to do it” through advocacy, through the media. Rapists are often now “tried in the court of public opinion” rather than criminal court. And, it seems, “the legal system isn’t quite catching up.”
Perhaps it is, at long last, beginning to. As a nation, “we are in a different place” when it comes to sexual assault, and even alcohol-involved sexual assault, says Archambault, who is in her 37th year of working on the issue. “I think we are in the midst of a sea change.”
She points to more and more media reports about campus rape, as well as those involving professional and college athletes—cases that in the past likely would have gone unreported. She points to federal investigations in Missoula, in New Orleans; to Human Rights Watch investigations in D.C.; to the fact that many law-enforcement offices across the country are participating in sexual-assault trainings. She lauds the Making a Difference Project, an EVAWI grant-funded collaboration among 16 different cities in the U.S. and Canada designed to develop more effective ways to investigate and prosecute alcohol- and drug-facilitated rape.
Also, more rape kits are being tested nationwide. In Washington state, as Johnson takes great care to emphasize, a bill passed this spring established the first state-level tracking system for rape kits in the country, as well as a Sexual Assault Forensic Examination (SAFE) Best Practices Task Force that includes victims, advocates, forensics experts, legislators, and law enforcement. One of its goals is to eliminate the discretion that law enforcement has had regarding when (or if) to test a rape kit, often influenced by outdated ideas about what counts as a “real” rape. While the backlog in Washington is enormous—some 6,000 kits remain untested—and even the top-priority cases will need to wait months, Johnson is optimistic that within the next year, her office will have a lot more information about potential serial offenders. That, and improved investigations and improved rape exams—just a few months ago, police, prosecutors, and sexual-assault nurse examiners decided that drawing a victim’s blood and testing her urine during a rape exam will be standard; it wasn’t before—suggests that, albeit slowly, things are changing. (Granted, some challenges to these changes still exist: The King County prosecutor’s office expects a $1 million budget cut next year.)
But if sex-crime prosecutors everywhere are waiting for society at large—and the juries that that society produces—to change, they may be waiting a while. “I have been dismayed by the lack of progress on it,” says one former King County prosecutor, who’s been in the business for decades. “People still incline to: ‘Why didn’t you leave? Why didn’t you scream? Why didn’t you do this, why didn’t you do that?’ … I don’t think the needle has moved that far, I’m sorry to say.” As a prosecutor, “You are still battling a lot of longstanding bias … without a very big set of weapons.”
No one—not victims, advocates, prosecutors, or detectives—will argue that the criminal-justice system is where rape victims should go to seek emotional closure or resolution. Many alleged victims have said that navigating the justice system left them feeling as if they were being interrogated—even by prosecutors—as if they were lying, though studies show the actual rate of false rape reports falls somewhere between 2 and 7 percent.
The justice system is, of course, and crucially, based on the premise that the accused is innocent until proven guilty beyond a reasonable doubt. Yet to not file charges at all, some argue—to not attempt to negotiate for some kind of consequence, be it a felony, a misdemeanor, or a day in court—demonstrates just how much power prosecutors have to define the scope of a crime, and thus, for better or worse, shape a culture.
“This guy … knows there was something of an investigation, and he got away with it,” says Monique. “What does that do to his psyche? And what does it do to our collective psyche, as, you know, a county, a city, a society?”
Every time a case like this gets declined, argues one former prosecutor, “We are enforcing a community norm that it is OK to rape drunk people.” Because, “as long as the prosecutor said, ‘It’s not rape,’ it’s not going to be rape.”
Laura and Monique, like many survivors of sexual assault, have continued to struggle. Laura went to therapy for over a year for PTSD “just to function again.” Monique cried herself to sleep for months, and then had to go on sleep medication because of the recurring nightmares. Both missed work, couldn’t eat, blamed the world, and blamed themselves. Both know that this will affect them for the rest of their lives. And both confirm, as did every victim who spoke to Seattle Weekly for this story, that while the assault itself was horrific, the legal process was worse.
“The hardest part … was not the flashbacks, or anything,” Monique says. “It was the treatment I got afterwards … I’m fairly realistic about outcomes, and I’m not even sure what outcome I wanted.” Was it to put this guy in jail? Was it forcing him to register as a sex offender? Or was it, quite simply, an acknowledgement of the crime? “It would have been nice to have somebody else take up the banner,” she says, rather than seeming to twist the crime into an unfortunate event that, if she hadn’t gotten so drunk, she could have prevented. “It would have been nice for somebody to stand up for me.”